Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Friday, June 1, 2012

New York Court Rules "Gay" Statement Not Slanderous Per Se

A New York state appellate court has ruled that the statement that someone is gay is not slanderous per se. In doing so, the court overruled the Matherson v. Marcello ("Good Rats") case of 1984. Citing among others the Lawrence v. Texas case, the court held, 

Rather than countenancing the view that homosexuality is disgraceful, the Human Rights Law, since 2002,has expressly prohibited discrimination based on sexual orientation in employment, public accommodations, credit,education and housing (Executive Law § 296). Most revealing of the respect that the people of this state currently extend to lesbians, gays and bisexuals, the Legislature passed the Marriage Equality Act (Domestic Relations Law § 10-a, as amended by L2011, ch 95, § 3) in June 2011, which was strongly supported bythe Governor and gave same-sex couples the right to marry in New York, thereby granting them all the benefits of marriage,including "the symbolic benefit, or moral satisfaction, of seeingtheir relationships recognized by the State" (Hernandez v Robles,7 NY3d 338, 358 [2006]). Even prior to the Marriage EqualityAct, this Court had previously explained that "the public policy of our state protects same-sex couples in a myriad of ways" –including numerous statutory benefits and judicial decisionsexpressing a policy of acceptance (Dickerson v Thompson, 78 AD3dat 54). Similarly "evidenc[ing] a clear commitment to respect,uphold and protect parties to same-sex relationships[,] executive and local orders extend[] recognized by the State" (Hernandez v Robles,7 NY3d 338, 358 [2006]). ...

We note that the most recent Appellate Division decisionconsidering the issue in depth was decided nearly 30 years ago(Matherson v Marchello, 100 AD2d 233, 241-242 [2d Dept 1984],supra). In that case, the Second Department concluded that it was "constrained . . . at this point in time" to hold that a statement imputing homosexuality was defamatory per se in lightof the then-existing "social opprobrium of homosexuality" and"[l]egal sanctions imposed upon homosexuals in areas ranging fromimmigration to military service" (id. at 241 [emphasis added]).Ultimately, the Court held that "the potential and probable harm of a false charge of homosexuality, in terms of social and economic impact, cannot be ignored"....

In light of the tremendous evolution in social attitudes regarding homosexuality, the elimination of the legal sanctions that troubled the Second Department in 1984 and the considerable legal protection and respect that the law of this state now accords lesbians, gays and bisexuals, it cannot be said that current public opinion supports a rule that would equate statements imputing homosexuality with accusations of serious criminal conduct or insinuations that an individual has a loathsome disease....In short, the disputed statements in this case are not slanderous per se....

The case is Yonaty v. Mincolla, decided April 23, 2012.

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